Second-hand vehicles are often unpredictable in so far as reliability, and general wear and tear are concerned. Below we will discuss the consumer’s right, as per section 56 (2) of the Consumer Protection Act (CPA), to request a supplier to repair or replace a second-hand vehicle or to request a refund at a price paid by the consumer for the vehicle, within a 6-month period as of purchase of the vehicle.
This concept may seem simple enough at first; however, complications arise once a vehicle component becomes defective during the six months. The consumer would naturally be drawn to exercising their rights as set out above in Section 56 (2) of the CPA. However, the supplier may rely on reasonable “wear & tear” of such components to avoid liability.
A grey area is thus created where MIOSA (Motor Industry Ombudsman of South Africa) advocates for the vehicle’s repair before the relevant contract is cancelled/refunded. However, the CPA gives such discretion to the consumer as per Section 56 (2) thereof. The question now arises about the definition of a “component” is. If a strict definition of section 56 (2) of the CPA is to be applied, would this mean that the consumer has the right to request a full refund based on a bulb that had blown during the initial 6-month period? As such, a blown bulb would render the vehicle un-roadworthy, thus no longer suitable for its intended purpose.
Further complications arise as to whether the consumer’s request for a refund may be met with the supplier’s request for a deduction from such refund price for the “use” of the vehicle or even a denial of such a request as an alleged defect may be due to “wear & tear”.
In terms of Motus Corporation (Pty) Ltd t/a Zambezi Multi Franchise v Abigain Wentzel, the Supreme Court of Appeal agreed with MIOSA that the supplier may withhold an amount due to “use” as defined in Section 20 (6) of the CPA. However, another argument may be offered by the consumer against the imposition of such deduction, as the consumer may submit that the CPA does not refer to “wear & tear” thus giving no clear legal basis that components (such as bulbs) are excluded from the provisions of Sections 55 and 56 of the CPA, as referenced above.
This argument was advanced at the National Consumer Tribunal (NCT) in Lordwick Mogalakane Leutele v Kolev Motors CC, where it was considered as to whether Section 55(2)(c) of the CPA, which considered whether the consumer’s right “to receive goods that will be useable and durable for a reasonable period, having regard to the use to which they would normally be put and to all the surrounding circumstances of their supply; and …” had been infringed or not. The consumer advanced this argument in the context of the fact that; should such a defect have existed from the start, then such a deduction for “use” or “wear & tear”, as advocated by MIOSA, cannot be found to be justified. The NCT agreed with the consumer in this matter, contrary to MIOSA.
Though the NCT matter, as referenced above, did not revolve around a bulb that was faulty or blown, there was a lack of a proper definition of “component” or at least a proper differentiation between a scenario where the repair or replacement of such a component should be the mandatory first course of action and when not, has left the matter open for interpretation and argument. One could also view the matter from the context of what the legislators may have had in mind at the time of drafting such legislation, as the argument that a defect and corresponding remedy should always be proportional may well be the best course of action.
Need more information on the duties and rights of second-hand or used vehicle dealerships? Contact your nearest SEESA Labour legal advisor. Alternatively, leave your details on our website, and a SEESA representative will contact you.
About The Author:
Dyllan Jankielsohn has been employed at SEESA for 6 years. He is a Labour, Consumer Protection and POPIA legal advisor and an ad-hoc training facilitator at the SEESA Bloemfontein branch. He obtained his LLB degree from the University of the Free State. He is an admitted attorney of the High Court of South Africa.
Resources:
- Sections 20, 55 & 56 of the Consumer Protection Act 68 of 2008 ;
- Motus Corporation (Pty) Ltd and Another v Wentzel (1272/2019) [2021] ZASCA 40;
- National Consumer Tribunal, Lordwick Mogalakane Leutele v Kolev Motors CC.